01997234
05-30-2001
Carolyn M. Honore, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carolyn M. Honore v. United States Postal Service
01997234
05-30-01
.
Carolyn M. Honore,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997234
Agency No. 1G-708-1051-94
Hearing No. 270-97-9124X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant filed a complaint in which she claimed that the agency
discriminated against her on the bases of color (darker than the plant
manager), gender, disability (nerve damage to right arm, depression,
stress), and reprisal (prior EEO complaints) by failing to post job
vacancies and giving favored employees preferential assignments and
details. See Title VII of the Civil Rights Act of 1943, as amended,
42 U.S.C. � 2001, et seq, and Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791. The agency initially dismissed
the complaint for failure to state a claim, but in Carolyn M. Honore
v. Marvin T. Runyon Jr., Postmaster General, United States Postal Service,
EEOC Appeal No. 01953482 (March 18, 1996), the Commission ordered the
agency to process the complaint. Pursuant to the Commission's order,
the agency investigated the complaint and thereafter referred the matter
to an administrative judge (AJ). The AJ issued a recommended decision of
no discrimination without holding a hearing. The agency adopted the AJ's
recommendation as its final decision, from which complainant now appeals.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we
apply the burden-shifting method of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens
Village Committee for Mental Health for Jamaica Community Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C. Cir. 1999). Under this analysis, complainant must first
establish a prima facie case by demonstrating that: (1) she is an
"individual with a disability"; (2) she is "qualified" for the position
held or desired; (3) she was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to
an inference of discrimination. Lawson v. CSX Transportation, Inc.,
2001 WL 292999, F.3d (7th Cir. 2001). When asked by the EEO
investigator why she believed that she was being discriminated against,
complainant gave the following response:
�My contention of discrimination is due the employment practice of the
[agency] in [hiring] casual, transitional, part-time flexible, part-time
regular, and full-time regular. . . . I'm making reference to persons
related to individuals in management within the [agency]. These managers
are appointing or advocating [the] appointment of relatives. All of
this is leading to the failure of the agency to post on bulletin boards
or other means, all job vacancies. This is leading to preferential
treatment and favoritism [through] filling positions by word-of-mouth,
and other unethical behavior, [with the result that vacancies are]
not being made available to all employees.�
Investigative Report (IR) 6, 8. When asked what remedy she was seeking,
complainant replied that she wanted the nepotism discontinued. IR 8.
The AJ found that complainant offered no evidence that the responsible
official accorded preferential treatment on any prohibited basis.
We agree. Nepotism is not a basis for discrimination identified in
Title VII or the Rehabilitation Act. Complaints brought on the basis of
nepotism are therefore outside the purview of the Commission's complaint
processing regulations. Moten v. Federal Energy Regulatory Commission,
EEOC Request No. 05940583 n. 1 (October 10., 1995). Consequently,
we find, as did the AJ, that this complaint raises no genuine issue of
material fact.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____05-30-01______________
Date